LABOR CODE §4660.1(c)

The WCAB, citing the case of City of Los Angeles vs. WCAB (81 CCC 611) (W/D), the panel stated that the Code Section does not preclude increased impairment ratings when the psyche injury arises directly from the events of employment. The applicant’s psychiatric disorder was not indirectly from the compensable physical injury. Therefore, the preclusion of §4660.1 (c) does not apply to applicant’s psyche injury.

The WCJ had limited the definition of violent act to a volitional act set in motion by human being. The panel citing the case of Larson v. Securitas Security Service (44 CWC R111) rejected a criminal or quasi criminal definition of violent act and defined the term for purposes of section 4660.1 as an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.

In this case the Board observed that the vehicle accident resulted in a fracture in the applicant’s neck and considerably threatened his life, and trapped him in an overturned tractor trailer for 35 to 40 minutes, requiring the “jaws of life” to extradite him from the wreckage. Such circumstances, in the opinion of the Board, can be characterized as “resulting from extreme or intense force and as vehemently threatening.” Thus, the mechanism of the injury constituted a “violent act” within the definition of §3208.3 (b), entitling the applicant to compensable site disability as an exception to §4660.1 (c).

The applicant, a truck driver, was involved in industrial motor vehicle accident, when another vehicle turned onto the highway without using a dedicated merge line, causing applicant to swerve to avoid the collision. The truck rolled over, pinning the applicant inside the cab, upside down. The applicant could not be removed from the cab for 35 to 40 minutes and the claustrophobic applicant could take only shallow breast.

The applicant testified at trial that he was afraid the truck would catch fire because the engine was still running in the truck had two full tanks of fuel.

Applicant was freed from the wreckage by the “jaws of life” and described the event as “terrific”.

Applicant testified he did not think he was hurt until he learned of the fracture of his see two vertebrae and he could’ve died fractured gone further.

Applicant testified he developed emotional symptoms slowly after the injury.

The panel Qualified Medical Evaluator in psychiatry diagnose the applicant with a post-traumatic stress disorder as a direct result of the incident that threatened applicant with death or serious injury.

The WCJ did not award the applicant psychiatric disability finding that the motor vehicle accident was not a violent act perpetrated by a human being.

Applicant filed a petition for reconsideration.

The Worker’s Compensation Appeals Board reversed the Worker’s Compensation Judge and found the psychiatric injury compensable.

The WCAB started by indicating Labor Code §4660.1(c) provides that there shall be no increase in impairment rating for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of compensable physical injury. Section goes on to provide that an increased impairment rating for a psychiatric disorder shall not be subject to the limitation if the applicant was a victim of violent act or direct exposure to a significant violent act within the meaning of section 3208.3 or a catastrophic injury, including but not limited to loss of limb, paralysis, severe burn or severe head injury.

The WCAB citing the case of City of Los Angeles vs. WCAB (81 CCC 611) (W/D), the panel stated that the Code section does not preclude increased impairment ratings when the psyche injury arises directly from the events of employment.

Panel concluded based on the report of the Qualified Medical Evaluator that the traumatic stress of the motor vehicle accident resulted in the post-traumatic stress disorder and was the industrial injury itself. The applicant’s psychiatric disorder was not indirectly from the compensable physical injury. Therefore, the preclusion of §4660.1 (c) does not apply to applicant psych injury.

The WCAB also agreed with applicant that even if the psyche injury were found to have arisen from his physical injuries, it would be compensable because the mechanism of injury itself was a violent act.

The WCJ had limited the definition of violent act to a volitional act set in motion by human being. The panel citing the case of Larson v. Securitas Security Service (44 CWC R111) rejected a criminal or quasi criminal definition of violent act and defined the term for purposes of section 4660.1 as an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.

In this case the Board observed that the vehicle accident resulted in a fracture in the applicant snack and considerably threatened his life, and trapped him in an overturned tractor trailer for 35 to 40 minutes, requiring the “jaws of life” to extradite him from the wreckage.

Such circumstances in the opinion of the Board can be characterized as “resulting from extreme or intense force and as vehemently threatening”

Thus, the mechanism of the injury constituted a “violent act” within the definition of §3208.3 (b), entitling the applicant to compensable site disability as an exception to 4660.1 (c).